In March 2002 the European Commission presented a proposal for a directive on the working conditions of temporary agency workers. This gives temporary agency workers the right to be treated at least as favourably as comparable workers in the business where they are placed in respect of "basic working and employment conditions", unless the difference in treatment is justified by objective reasons.

The European Parliament undertook its first reading of the proposal in November and made various amendments, including the following:

  • confirmation that the principle of non-discrimination should be applied from the commencement of a temporary agency worker's assignment, rather than be subject to an exemption for the first six weeks that the worker is with a user company;

  • clarification that protection in respect of "basic working and employment conditions" should be at least that which would apply to temporary agency workers directly employed by the user company for the same duration, performing the same or similar tasks, taking into account qualifications and skills. 'Basic working and employment conditions' are those set out in legislation, collective agreements and other company-related provisions relating to (i) working time and rest periods, (ii) paid holidays, (iii) pay, including overtime pay, (iv) health, safety and hygiene at work, (v) maternity protection, (vi) parental leave, and (vii) discrimination and harassment. Temporary agency workers should also benefit from national provisions on information, consultation and participation, and internal complaints procedures;

  • exemptions for temporary agency workers with permanent contracts or contracts of at least 18 months guaranteeing them adequate and continuous payment irrespective of whether they are on an assignment (but only in respect of pay), and where collective agreements are continued or concluded by social partners at the appropriate level; and

  • an exemption for member states unaccustomed to the non-discrimination principle (eg, the United Kingdom and Ireland). This entitles them not to apply for five years the pay requirement for assignments of under six weeks within a one-year reference period, as long as an adequate level of pay is provided from the outset.

The proposed directive is still subject to a first reading by the European Council, and then further approval by each of the European Parliament and Council before being finally adopted. Member states will also have a two-year period within which to implement the directive once it has been adopted, subject to the staggered implementation allowed for certain provisions.

For further information on this topic please contact Mark Mansell or Felicity Gemson at Allen & Overy by telephone (+44 20 7330 3000) or by fax (+44 20 7330 9999) or by email ([email protected] or [email protected]).